BY DUCKY PAREDES: A WAY OUT OF THE NAIA 3 MESS
MANILA, JANUARY 6, 2011 (MALAYA) DUCKY PAREDES - '(S)howing a more conciliatory face to Fraport may convince future investors that the Philippines has learned how to treat those it wants to invest in this country.'
GERMANY'S ambassador has a reasonable solution for the Aquino administration -- sit down with the German firm Fraport AG to bring about a mutually acceptable solution to the Ninoy Aquino International Airport (Naia) Terminal 3 dispute.
This administration that promised change seems to be sticking to the much-discredited Arroyo administration's game plan of taking what we can without regard for the investor's interest. Fraport, in this dispute, that involves also GMA and Piatco, is probably the least guilty of anything. Its main fault may have been to follow the lead of Piatco in their dealings with the government.
This was not an easy task; Piatco had to talk to three different diverse and mutually suspicious administrations, each unfriendly to its predecessor.
Did Fraport violate the Anti- Dummy Law? Of course, it did; but wasn't this at Piatco's prodding? Piatco found itself in a tough situation and took the easy way out, knowing that this particular law was honored more in the breach than in the observance.
On the other side, were the GMA government's hands spotlessly clean and its motives totally aboveboard when it went after Fraport? I (and a lot of others) have very serious doubts about that. In fact, the suspicion is that Fraport-Piatco was being pressured to come across or else? What happened next is what the threat of "or else" was all about.
So, should the new government – one dedicated to transparency, honesty and change -- go ahead and do what the discredited former government was bull-headedly primed to do? Should it expropriate the build-operate and transfer project and make Fraport wait an eternity before making payments for what it had invested under a BOT contract in NAIA 3?
This is where we are at the moment. After years of litigation, we are where we were before all of those cases were filed with and heard by the ICSID tribunals.
Our own Supreme Court has ruled that we can take over NAIA 3 but that we have to pay Fraport-Piatco what it spent for the construction. On the other hand, the suit filed by Fraport in which an International Centre for Settlement of Investment Disputes (ICSID) tribunal had ruled in our favor, was overturned in December by an apparently higher ad hoc tribunal. Thus, we are all back to square one.
Fraport can re-file its case. That would force us to spend for expensive lawyers, whose practice is in International Law, all over again to represent us in the international bodies hearing the Fraport suit.
Should we go this route, knowing now that this is a very expensive process for a country that never has enough money for everything that we need to do, year in and year out? Or is there a better way?
Ambassador Christian-Ludwig Weber-Lortsch has a suggestion: "As a way out of this impasse, I am still optimistic that the new administration, in line with its investment priorities, will bring the parties involved to the negotiating table in order to facilitate a legal, fair and timely solution for an inherited problem."
The ambassador has been promoting the Philippines as a place for Germans and other Europeans to invest in. "Unfortunately, the largest impediment to this day remains the unresolved expropriation case of the Naia 3 terminal not only for German but also for European and other international investments.
"The German government, through its partial investment guarantee, suffered the biggest loss of its kind in the last years," he says.
Ambassador Weber-Lortsch suggests: "It is time to look forward and do away with the ghosts of the past."
Fraport went to the World Bank- ICSID to recover the $425 million it had invested in the project after the Philippine government seized the terminal in December 2004. It will probably do so again.
Talking to Fraport now could free the country of another decade of hearings before international tribunals. Also, showing a more conciliatory face to Fraport may convince future investors that the Philippines has learned how to treat those it wants to invest in this country.
***
I don't see anything wrong with the Department of National Defense (DND) asking those who would avail of an amnesty to admit where they crossed the line. If they do not believe that there was anything wrong in what they did, certainly, they should not be signing up for the offered amnesty.
The DND, which wrote the IRR (implementing Rules and Regulations) of the proffered amnesty is just doing its job. The one applying for an amnesty must admit to what he did, even if he does not admit that this was wrong or that he is repentant about breaking the law. This is, to me, being already overly kind to soldiers that went against the State – even if in their mind, this was only against Gloria Arroyo, No matter what, she was the president at the time, accepted to be so by the SC, which had no business declaring who the president is (since this is a task given to Congress) but illegally did so anyway, and accepted as such by all of the institutions of our democracy and much of the world. Thus, as soldiers, it was still wrong for these soldiers to go against heir commander-in-chief.
They may not like it but that is what they did wrong – going against their lawful commander-in-chief.
By the way, a lot of them did this twice; the first was when they abandoned Joseph Estrada, the sitting legally installed commander-in-chief.
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Chief News Editor: Sol Jose Vanzi
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